Kingston v. Walters

14 N.M. 368 | N.M. | 1908

OPINION OF THE 'COURT.

MILLS, C. J.

To the complaint filed in this case, the defendant demurred, and the principal ground relied on in the demurrer is the statute of frauds, defendant claiming that the complaint shows on its face that the entire contract sued on, and which concerned the transfer of lands, was not in writing, as the complaint sets out that a verbal alteration was made in the terms of the written contract, by which the time for the payment of the second in-stalment of the purchase price was extended;, and that the complaint does not show that there was any consideration for the extension of the time of such payment.

1 After argument the demurrer was sustained, and plaintiffs refusing to plead further, although time was given them so to do, the action was dismissed. This court has held that the statute of frauds being general in its nature and not local to England, and forming a part of the common law, is in force in this Territory. Childers v. Talbott, 4 N. M. 336.

As in this case the plaintiffs have only asked for monetary damages, and n-ot for any equitable relief, prior to the introduction of the reformed system of pleading, the demurrer was undoubtedly well taken, for the Supreme Court of the United States has announced the doctrine to be that in common law cases, “a written contract within the statute of frauds cannot be varied by any subsequent agreement of the parties unless such new agreement is also in writing.” Emerson v. Slater, 22 Howard 28; Swain v. Seamans, 9 Wall. 254.

2 It is also a well settled rule that courts of equity are as much bound by the statute of frauds as courts of law, and that they cannot specifically enforce contracts embraced by the statute any more than courts of law can give damages for their non-performance. But courts of equity have always been clothed with the salutary power of preventing frarxd or affording positive relief against its consequences, and this power they have not hesitated to exercise by compelling the specific execution of a verbal contract to which the provisions of the statute of frauds apply, where the refusal to exercise it would amount to practicing a fraud. Browne on Statute of Frauds, 5 Ed., Sec. 437.

This ease seems to us to come within the rule as laid down in Cheney v. Libby, 134 U. S. 68, where the court says: “But there are other principles, founded in justice, that must control the decision of the present case. Even where time is made material, by express stipulation,” (and in the case at bar such is not the ease), “the failure of one , of the parties to perform a condition within the. particular time limited, will not in every case defeat his right to specific performance, if the condition be substantially performed, without unreasonable delay, and no circumstances have intervened that would render it unjust or inequitable to give such relief. The discretion, which a court of equity has to grant or refuse specific performance, and which is always exercised with reference to the circumstances of the particular case before it, (Hennessy v. Woolworth, 128 U. S. 438, 442), may, and of necessity must often be controlled by the conduct of the party who bases his refusal to perform the contract upon the failure of the other party to-strictly comply with its conditions. Seton v. Slade, 7 Ves. 265, 279; Levy v. Lindo, 3 Merivale, 81 84; Hudson v. Bartram, 3 Madd. 440, 447; Lilley v. Fifty Associates, 101 Mass. 432, 435; Potter v. Tuttle, 22 Conn. 512, 519. See also Ahl v. Johnson, 20 How. 511, 518.”

Believing that this is a case- of which a court administering equitable relief should take cognizance, provided it can do so under the pleadings, we will now proceed to briefly examine-the complaint, to^ascertain whether or not it sets up such a cause of action as would warrant the court to-disregard the statute of frauds in order to prevent a fraud.

3 In this Territory the practice is no longer controlled by the common law forms, for under our code of civil procedure, Sec. 2685, Compiled Laws of 1897, there is but one form of civil action, and a plaintiff may unite in the same complaint several causes of action, both legal and equitable. In other words under the reformed -system of pleadings, which our legislature has adopted, litigants are given the relief which the facts in the pleadings show .them to be entitled to, in one action, whether the relief is equitable, or legal, or both.

The defendant demurred to the complaint, and thus admitted the truth of everything contained in it which is well pleaded, so we must of necessity examine the complaint to see if it sets up a cause of action which is good either in law or equity. It is immaterial that the prayer for relief only asks for a judgment for monetary damages, for it is not the prayer that the court looks to, but the facts as they appear in the 'body of the complaint. Some courts have gone so far as to hold that under the reformed system of pleading a complaint is good without any prayer for relief, and it now seems to be the well settled doctrine-that if a plaintiff has set forth facts constituting a cause of action, and entitling him to some relief, either legal or equitable, his action shall not be dismissed because he has misconceived the nature of his remediable right, and has asked for a legal remedy when it should-have been equitable, or for an equitable remedy when it should have, been legal. In Emery v. Pease, 20 N. Y. 62, the complaint set out facts which entitled the plaintiff to an accounting, but did not ask for one; it did not aver any settlement, nor ascertained balance due, and demanded judgment for a sum certain. On the trial the case was dismissed, on- the ground that it did not set forth facts sufficient to constitute a cause of action. Comstock, J., after stating the old rule by which the action would have been properly dismissed, proceeds: “In determining whether an action will lie, the courts are to have no regard to the old distinction between legal and equitable remedies. Those distinctions are expressly abolished. A suit does not as formerly fail because the plaintiff has made a mistake as to the form of the remedy. If the case which he states entitles him to any remedy, either legal or equitable, his complaint is not to be dismissed because he has prayed for a judgment to which he is not entitled.”

The rule is tersely and accurately stated in Grain v. Aldrich, 38 Cal. 514-520, where the court says: “Legal and equitable relief are administered in the same form and according to the same general plan. A party cannot - be sent out of court merely because his facts do not entitle him to relief at law, or merely because he is not entitled to relief in equity, as the case may be. He can be sent out of court only when upon Iris facts he is entitled to no relief, either in law or.in equity.” ■ This doctrine is held in nearly all the states where codes of procedure or practice acts have been adopted, and is the general rule. Pomeroy Code Bemedies, 4th Ed., Sec. 11, Note 1.

The- complaint alleges, that “at the same time and place set out in the written contract”.......'..... “The defendant entered into and made a subsequent oral contract extending for the period of five days the time in which to make the second payment of $200.00; that on August 20th, 1904, plaintiffs paid defendant the further, sum of $100.00 to apply on the contract and on August 31, 1904, were ready and willing to pay the remaining $100.0-0,” but that defendant absented himself from his usual place of business in Boswell, “and remained absent for some time, thereby defeating said payment at that time.” A tender of. the balance of the purchase price is also alleged.

As above remarked the demurrer admits the truth of everything in the complaint which is well pleaded. It admits the payments of $100 on August 11th, 1904, and a similar amount on August 20th, 1904, before any'of the second payment became due; it admits that the time of the second payment was orally extended, as alleged in the complaint and that defendant absented himself from his usual place of business in Boswell, “and remained" absent for some time, thereby defeating said payment at that time.”

It is evident that the facts as set out in the complaint and admitted by the demurrer are such that a court of equity in order to prevent a fraud will take jurisdiction of this: cause, take proofs, .and if the facts warrant it order a specific performance of the contract or in lieu thereof award plaintiffs damages, or if the plaintiffs fail in their proofs enter a judgment in favor of defendant.

For' the reasons given above the cause is reversed and remanded to the District Court of Chaves County, for further proceedings in accordance with this opinion, and it is so ordered.

F. W. Parker, A. J., dissents.